Citation Nr: 0421342
Decision Date: 08/04/04 Archive Date: 08/09/04
DOCKET NO. 99-04 630 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Winston-
Salem, North Carolina
THE ISSUE
Entitlement to service connection for a left knee disability.
REPRESENTATION
Appellant represented by: North Carolina Division of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his son
ATTORNEY FOR THE BOARD
L. M. Davis, Counsel
INTRODUCTION
The veteran served on active duty in the United States Coast
Guard from May 1960 to May 1964.
A rating decision by the Department of Veterans Affairs (VA)
Regional Office (RO) in Winston-Salem, North Carolina denied
service connection for a left knee disability. The veteran
appealed that decision to the Board of Veterans' Appeals
(Board).
In July 2000, the veteran presented testimony at a personal
hearing before the undersigned Acting Veterans Law Judge via
video conference from the RO. In September 2000, this case
was remanded by the Board to the RO for additional
evidentiary development.
In an April 2002 decision, the Board denied entitlement to
service connection for a left knee disability. The veteran
appealed this determination to the United States Court of
Appeals for Veterans Claims ("the Court"). In an order
dated November 12, 2003, the Court vacated the Board's April
2002 decision in light of the Veterans Claims Assistance Act
of 2000 (VCAA) and remanded for compliance with VCAA.
FINDINGS OF FACT
1. The veteran did not clearly and unmistakably have a left
knee defect, infirmity, or disorder prior to his entry into
active duty.
2. The veteran currently has a diagnosis of medial
compartment narrowing post medical meniscectomy with residual
chondromalacia which is related to service.
CONCLUSIONS OF LAW
1. There is no clear and unmistakable evidence that a left
knee defect, infirmity, or disorder existed prior to service
and the presumption of soundness is not rebutted. 38
U.S.C.A. §§ 1111, 1153 (West 2002); 38 C.F.R. §§ 3.304, 3.306
(2003).
2. A left knee disability, currently diagnosed as medial
compartment narrowing post medical meniscectomy with residual
chondromalacia, was incurred in service. 38 U.S.C.A. § 1131
(West 2002); 38 C.F.R. §§ 3.303, 3.304 (2003).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
There has been a significant change in the law with the
enactment of VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002). To implement the provisions of
the law, the VA promulgated regulations at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a)). The amendments became
effective November 9, 2000, except for the amendment to 38
C.F.R. § 3.156(b) which became effective August 29, 2001.
Except for the amendment to 38 C.F.R. § 3.156(a), the second
sentence of 38 C.F.R. § 3.159(c), and 38 C.F.R. §
3.159(c)(4)(iii), VA stated that "the provisions of this
rule merely implement the VCAA and do not provide any rights
other than those provided in the VCAA." 66 Fed. Reg.
45,629. Accordingly, in general where the record
demonstrates that the statutory mandates have been satisfied,
the regulatory provisions likewise are satisfied. The Act
and implementing regulations eliminate the concept of a well-
grounded claim, redefine the obligations of VA with respect
to the duty to assist, and supersede the decision of the
United States Court of Appeals for Veterans Claims in
Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom.
Morton v. Gober, 14 Vet. App. 174 (per curiam order) (holding
that VA cannot assist in the development of a claim that is
not well grounded).
First, VA has a duty to notify the claimant and his or her
representative, if represented, of any information and
evidence needed to substantiate and complete a claim.
38 U.S.C.A. §§ 5102, 5103. Second, VA has a duty to assist
the claimant in obtaining evidence necessary to substantiate
the claim. 38 U.S.C.A. § 5103A.
The Court has remanded this case to the Board for VCAA
compliance. The veteran has not been issued a VCAA letter.
However, in the interim, the veteran submitted competent
medical evidence as well as lay evidence in support of his
claim. In light of this evidence in conjunction with the
record, the Board finds, as set forth below, that his claim
may be granted in full at this time. Thus, there is no
prejudice or harm to the veteran with regard to the VCAA
deficiency.
Factual Background
In a report of medical history completed on enlistment in May
1960, it was noted that the veteran had been rejected for
enlistment in the Army due to scar tissue on his left calf
because it was felt that combat boots might irritate the
tissue. In a report of physical examination also completed
at enlistment, it was noted that the veteran's lower
extremities were found to be normal. The presence of a burn
scar was noted on his left leg.
The veteran's service medical records reveal that, later in
May 1960, he complained of pain and swelling in his left
knee. He reported a history of having hurt his knee while
skating two months before. He indicated that his knee had
been bothering him, but that the pain was particularly bad
that morning. Examination revealed marked swelling and
fluctuation of the periarticular soft tissue of the left
knee, but no fluctuation of the patella. He was given a
diagnosis of periarticular effusion of the left knee. The
veteran was treated with an Ace wrap for several weeks. He
complained of similar symptoms on several other occasions
throughout the next month. The last notation regarding these
complaints was in a June 1960 clinical note, which reveals
that some swelling was again observed in his left knee. The
examiner noted an impression of left knee sprain.
No additional complaints were reported relating to the lower
extremities until October 1960, when the veteran complained
of left leg pain of approximately four weeks' duration. It
was noted that he had a past history of burns on his left
leg, which required skin grafting nine years before. The
veteran reported that, while he was in boot camp, he fell and
injured his left knee. He reported that he experienced some
swelling following that injury and that he required physical
therapy. Physical examination was found to be within normal
limits. The examiner noted that the veteran was treated with
several days of bedrest and that he had no further
complaints.
Subsequent service medical records are negative for any
complaints or treatment regarding the veteran's left knee.
In a report of medical history completed at separation in
April 1964, the veteran reported no history of a trick or
locked knee. Physical examination conducted at separation
revealed no defects in the left knee.
Post-service medical records show that, in July 1973, the
veteran was admitted to a private hospital to undergo a left
knee arthrotomy. It was noted that he had been seen earlier
that month after complaining of his left knee having given
out. Examination at that time had revealed flexion
contracture of at least 20 degrees, but no effusion or
ligamentous instability. It was also noted that he had
sustained an injury to his left knee while playing softball
in May 1972, and that a physician had aspirated 20 cc of
blood at that time. X-rays of the left knee were found to be
normal, but the veteran reported experiencing at least two
episodes of his knee having given way since May 1972. During
his admission in July 1973, the veteran underwent a medial
meniscectomy of the left knee for a bucket handle tear of the
medial meniscus. His postoperative course was noted to be
essentially uneventful.
Subsequent clinical records reveal no further complaints or
treatment regarding the left lower extremity until February
1989. A private clinical note dated in that month shows that
the veteran received injuries to his face, neck, and right
shoulder when he was beaten by two men. Although no injuries
to the left knee were found during his initial examination,
the physician noted later that month that the veteran was
experiencing "less pain" in his right shoulder, face, and
left knee.
In October 1995, the veteran filed a formal claim of
entitlement to service connection for a left leg disability.
He reported that he had been in a cast for six weeks in the
military because he had broken bones. He also reported that
he was currently experiencing pain and swelling in his left
leg, and that his leg felt weak and often gave out on him.
VA treatment records reveal that, in April 1996, the veteran
was treated for "severe sciatica" at the VA Medical Center
(VAMC) in Durham, North Carolina. The following month, he
reported experiencing good relief after taking Ibuprofen. In
July 1996, the veteran underwent a left lumbar 4-5 herniated
nucleus pulposus. He reportedly tolerated the procedure well
and left the operating room in stable condition.
In August 1996, the veteran was readmitted to the VAMC in
Durham after developing an acute onset of pain in the left
leg and foot drop. It was noted that he was only two weeks
status post for a left lumbar 4-5 herniated nucleus pulposus.
He subsequently underwent a left secondary lumbar 4-5
diskectomy for recurrent disk. Several days later, the
veteran underwent an electromyography (EMG) and nerve
conduction studies. It was determined that he had an
abnormal but suboptimal study. Because his acute symptoms
were only three weeks old and therefore of insufficient
length to allow for the development of spontaneous activity,
it was noted that the study could not rule out the presence
of new L5 radiculopathy. However, because his symptoms were
broader than an L5 distribution, it was further noted that
the EMG would suggest that there was at least a
suprasegmental component of the weakness in his left leg.
The Discharge Summary reflects that he was given a diagnosis
of left lumbar 4-5 partial hemilaminectomy and diskectomy.
No distinct diagnoses were noted regarding the veteran's left
lower extremity or left knee.
Subsequent VA treatment records reveal periodic complaints of
pain in multiple joints, including the left knee. In April
1997, the veteran was evaluated for chronic pain in his left
leg, back, and right shoulder. In an October 1997 clinical
note, an examiner indicated that he was experiencing
arthritic pain in the back and shoulder, and cramps in the
left leg. In a December 1997 clinical note, an examiner
noted a diagnosis of severe traumatic arthritis in multiple
joints, but did not specifically mention the left knee. The
next notation pertaining to the veteran's left lower
extremity is a September 1998 clinical note in which an
examiner indicated a diagnosis of arthritis in the back and
legs.
In July 2000, the veteran presented testimony at a personal
hearing before the undersigned. He stated that he did injure
his left knee while skating, as he reported in May 1960, but
did not have any problems with his knee after that injury.
He testified that his first problems began after he injured
his knee in fall in boot camp. The veteran explained that
his knee never stopped bothering him after that, but that he
experienced a greater injury when he was struck in the knee
with a buoy several months later. He indicated that he was
sent for treatment to Norfolk Naval Hospital, where his knee
was placed in an Ace bandage. The veteran testified that his
knee continued to bother him throughout the remainder of
service, but that he treated himself with medication. He
reported that he did not seek further treatment until 1972
when his knee locked up. He stated that he had continued to
experience recurring pain and swelling in his knee since that
time.
During his July 2000 hearing, the veteran submitted
additional documentary evidence in support of his claim. One
of these documents was a May 2000 letter from a VA physician,
Dr. W.S., who indicated that he had treated the veteran for
chronic pain in his left knee. The physician noted that the
veteran had a history of a medial meniscus tear of the left
knee, status post-medial meniscectomy in July 1973. Dr. W.S.
noted that there was some question as to when the original
injury occurred, but that, based upon a review of his
military record dated in May 1960, he believed that it was
likely that the injury occurred while serving in the
military.
During his hearing, the veteran also submitted a signed
statement from T.W., who was his service manager at a car
dealership from 1968 to 1973. T.W. indicated that the
veteran had missed an average of three to four days a month
due to problems with his left knee. The veteran also
submitted a statement from B.M., who was his service manager
from 1973 to 1976. B.M. indicated that the veteran had
experienced problems with his left knee while they were
working together, and that he had missed an average of three
to five days per month.
In September 2000, the Board remanded this case for
additional evidentiary development. The Board instructed the
RO to obtain all available recent treatment records
concerning the veteran's claimed left knee disability and all
records used by the Social Security Administration (SSA) in
reviewing the veteran's claim for disability benefits from
that agency. The Board also instructed the RO to provide the
veteran with a VA orthopedic examination in order to
determine whether the veteran had a left knee disability
prior to his entrance into service, and, if so, whether that
disability increased during his military service. If no
preexisting disability was found, the examiner was to comment
on whether any initial manifestations of the veteran's
claimed disability were shown during service or whether his
current disability was related to the 1972 softball injury or
to some other post-service intercurrent or superceding
injury.
In a signed statement dated in November 2000, the veteran
reported that he had been receiving treatment for his left
knee disability from the VAMC in Durham, North Carolina since
1994. He indicated that this was his primary care facility
and that he was not receiving treatment from any other
physicians.
Thereafter, in February 2001, the RO obtained the veteran's
records from the SSA. These records show that, in October
1996, the veteran was provided with an examination by the
SSA. The examining physician noted an impression of
herniated disc syndrome, radiculopathy on the left side,
hypertensive vascular disease, and deformity of the hands
bilaterally.
In March 2001, the veteran underwent a VA orthopedic
examination. In his report, the VA examiner provided a
discussion regarding the veteran's medical history as
documented in the claims folder. After conducting a physical
examination, the examiner concluded that the veteran did have
a current left knee disability, which he diagnosed as
"meniscus injury, remote with medial meniscectomy with
residual chondromalacia and arthritis of the left knee with
painful reduced motion." The examiner concluded that this
disability did not exist prior to the veteran's military
service nor did it exist when he left military service in
1964. In this regard, the examiner noted that there was no
mention of any history or symptoms pertaining to the left
knee at the time of the veteran's separation. The examiner
determined that the veteran's current left knee disability
was proximately due to his 1972 softball injury or other
post-service injury to his left knee. The examiner noted
that it was not unusual for someone to progress from
cartilage or meniscus ligament tears requiring surgery to
further deterioration of cartilage and subsequent traumatic
or degenerative arthritis in the involved joint. The
examiner therefore found that this was the most likely
explanation for the veteran's current left knee disability.
X-rays obtained of the left knee in March 2001 showed loss of
joint space in the medial compartment and marginal
osteophytes present medially. The interpreting physician
noted that there were also posterior patellar osteophytes,
but no knee effusion and no other abnormalities present. The
physician noted an impression of moderate degenerative joint
disease.
In August 2001, the RO requested medical records from Dr.
E.E., who performed the veteran's disability examination for
SSA. Among the records subsequently received from this
physician was a June 2000 letter in which Dr. E.E. noted that
the veteran had asked him to review his medical records in
regard to a claim for a service-connected disability. In
this letter, the physician discussed the veteran's service
medical records and the 1973 hospital report, and concluded
that "there is no medical evidence to indicate that I can
categorically say his problems occurred as a result of being
service connected."
In December 2003, the veteran submitted additional lay
evidence. In a letter from the veteran's wife, she stated
that she met the veteran in September 1961 and they married
in April 1962. From the time she met the veteran, the
veteran had pain and swelling in his left knee, instability,
and that he walked with a limp. The veteran's wife is not
competent to diagnose specific disability nor opine as to
etiology thereof, but she is competent to report what she
observed, as she indicated. In addition, in two statements
from former co-workers, it was indicated that from 1965 to
1972, the veteran was observed to have left knee problems.
In April 2003, the veteran was treated by E.A., M.D., for
left knee disability. The diagnosis was medial compartment
narrowing status post medial meniscectomy. The physician
opined that the veteran's current left knee disability
originated with his inservice knee injury. The physician
stated that he had reviewed the service and post-service
medical records. Also, in April 2003, two statements were
furnished by C.P., M.D., who stated that although the veteran
injured his left knee playing softball in 1972, it was his
opinion that current left knee disability originated during
service. He referenced the service medical records and
documented treatment of the veteran's left knee which was
indicative of a review of the record.
Analysis
The veteran is seeking entitlement to service connection for
a left knee disability. He essentially contends that he did
not have a left knee disability prior to service and that his
left knee disability developed as a result of two injuries
sustained in service. Specifically, he points to an incident
in which he allegedly injured his left knee in a fall during
service and an incident in which he was reportedly struck by
a buoy.
The Board notes that since the veteran has not been shown to
be capable of making medical conclusions, his statements
regarding causation are not competent in that regard.
Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992).
At the outset, the Board notes that where a combat wartime
veteran alleges he suffers disability due to an injury
incurred in service, 38 U.S.C.A. § 1154(b) must be
considered. Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996);
Gregory v. Brown, 8 Vet. App. 563 (1996); Caluza v. Brown, 7
Vet. App. 498 (1995). In this case, while the veteran is a
wartime veteran, the record does not show that he served
during combat. Thus, 38 U.S.C.A. § 1154(b) is not for
application.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1131; 38 C.F.R. §§ 3.303, 3.304. Additionally,
the pertinent laws and regulations provide that arthritis
will be presumed to have been incurred in service if it had
become manifest to a degree of ten percent or more within one
year of the veteran's separation from service. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309.
Further, VA regulation provides that with chronic disease
shown as such in service (or within the presumptive period
under § 3.307) so as to permit a finding of service
connection, subsequent manifestations of the same chronic
disease at any later date, however remote, are service
connected, unless clearly attributable to intercurrent
causes. For the showing of chronic disease in service there
is required a combination of manifestations sufficient to
identify the disease entity, and sufficient observation to
establish chronicity at the time, as distinguished from
merely isolated findings or a diagnosis including the word
"chronic." When the disease identity is established
(leprosy, tuberculosis, multiple sclerosis, etc.), there is
no requirement of evidentiary showing of continuity.
Continuity of symptomatology is required only where the
condition noted during service (or in the presumptive period)
is not, in fact, shown to be chronic or where the diagnosis
of chronicity may be legitimately questioned. When the fact
of chronicity in service is not adequately supported, then a
showing of continuity after discharge is required to support
the claim. 38 C.F.R. 3.303(b).
A claim for service connection generally requires competent
evidence of a current disability; proof as to incurrence or
aggravation of a disease or injury in service, as provided by
either lay or medical evidence, as the situation dictates;
and competent evidence as to a nexus between the inservice
injury or disease and the current disability. Cohen v.
Brown, 10 Vet. App. 128, 137 (1997); Layno v. Brown, 6 Vet.
App. 465 (1994).
The law provides that a veteran is presumed in sound
condition except for defects, infirmities, or disorders noted
when examined and accepted for service. Clear and
unmistakable evidence that the injury or disease existed
prior to service will rebut the presumption. 38 U.S.C.A. §
1111.
As noted, generally, veterans are presumed to have entered
service in sound condition as to their health. This
presumption attaches only where there has been an induction
examination in which the later complained-of disability was
not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227
(1991). The regulation provides expressly that the term
"noted" denotes "[o]nly such conditions as are recorded in
examination reports," 38 C.F.R. § 3.304(b), and that
"[h]istory of preservice existence of conditions recorded at
the time of examination does not constitute a notation of
such conditions." Id. at (b)(1).
The service medical records as well as correspondence from
the veteran indicates that the veteran injured his left knee
shortly before his enlistment in the U.S. Coast Guard.
Specifically, the Board notes that the veteran reported to
his inservice examiners that he injured his left knee while
skating two months prior his enlistment. The veteran was
competent to state that he had injured his knee. The veteran
was not competent to state that he had a left ankle knee
defect, infirmity, or disorder from that injury.
The Board must determine whether, under 38 U.S.C.A. § 1111
and 38 C.F.R. § 304(b), the presumption of soundness is
rebutted by clear and unmistakable evidence that a disease or
injury existed prior to service. The burden of proof is on
VA to rebut the presumption by producing clear and
unmistakable evidence that a disability existed prior to
service. See Kinnaman v. Principi, 4 Vet. App. 20, 27
(1993). The determination of whether there is clear and
unmistakable evidence that a defect, infirmity, or disorder
existed prior to service should be based on "thorough
analysis of the evidentiary showing and careful correlation
of all material facts, with due regard to accepted medical
principles pertaining to the history, manifestations,
clinical course, and character of the particular injury or
disease or residuals thereof." 38 C.F.R. § 3.304(b)(1).
In July 2003, the VA General Counsel issued a precedent
opinion, which held that, to rebut the presumption of sound
condition under 38 U.S.C.A. § 1111 of the statute, VA must
show by clear and unmistakable evidence both that the disease
or injury existed prior to service and that the disease or
injury was not aggravated by service. VAOPGCPREC 3-03 (July
16, 2003).
In this case, the veteran had an injury to his left knee
before service entry. VA law and regulations require that
there is clear and unmistakable evidence that a left knee
defect, infirmity, or disorder existed prior to service. In
this case, although the veteran reported a left knee injury
prior to service, there is no evidence that this alleged
injury resulted in any left knee defect, infirmity, or
disorder, much less any functional impairment. The veteran
himself does not allege that he had a left knee defect,
infirmity, or disorder prior to his service entry.
Moreover, the Board notes that in Miller v. West, 11 Vet.
App. 345, 348 (1998), the Court held that a veteran's self-
report that he had previously suffered from "depression or
excessive worry," in-service clinical records reflecting a
pre-service diagnosis of a psychiatric disability, and an in-
service medical board that found the veteran's psychiatric
disability preexisted service were insufficient to rebut the
"presumption of soundness" as was found in 38 U.S.C.A § 1111,
because these records "were not supported by any
contemporaneous clinical evidence or recorded history in the
record." Because they were therefore "without a factual
predicate in the record," they were found to be insufficient
to rebut the presumption of soundness. As in Miller, there
is no contemporaneous medical evidence of record to support
the conclusion that the veteran had a left knee defect,
infirmity, or disorder which preexisted his entry into active
duty in May 1960.
Accordingly, the Board finds that the veteran did not clearly
and unmistakably have a left knee defect, infirmity, or
disorder prior to his entry into active duty. Thus, there is
no clear and unmistakable evidence that a left knee defect,
infirmity, or disorder existed prior to service and the
presumption of soundness is not rebutted.
With respect to the veteran's burn scars of the left leg, the
Board notes that the veteran has never contended that these
scars are in any way related to his claimed left knee
disability and there is no medical evidence of record
suggesting that such is the case. In fact, the weight of the
evidence suggests that these scars are unrelated to his
claimed knee disability, as they have been repeatedly found
to be asymptomatic on examination. Thus, the Board believes
that the fact that these scars were noted at enlistment, and
have therefore been shown to have preexisted service, to be
essentially irrelevant to the present claim.
Having found that the presumption of soundness has not been
rebutted, the Board will now turn to the question of whether
the veteran's current claimed left knee disability was
incurred as a result of his military service. As discussed
in detail above, the veteran contends that his current left
knee disability is due to two injuries he allegedly sustained
while on active duty.
In this case, there is conflicting medical evidence.
The examiner who conducted the March 2001 VA orthopedic
examination determined that a left knee disability did not
exist when the veteran left the military in 1964. In support
of this conclusion, the examiner pointed to the veteran's
service medical records, which show that no complaints were
noted regarding left knee problems after October 1960 and
that no defects were found in the left knee during his
separation physical. Although the examiner concluded that
the veteran did have a current left knee disability, which he
diagnosed as residual chondromalacia and arthritis with
painful reduced motion, he found that this disability was
proximately due to the veteran's 1972 softball injury or to
some other post-service injury to his left knee. The
examiner explained that it was not unusual for someone to
progress from cartilage or meniscus ligament tears, as the
veteran experienced in 1972, to degenerative arthritis in the
involved joint.
Dr. E.E. stated that "there is no medical evidence to
indicate that I can categorically say his problems occurred
as a result of being service connected."
Conversely, in a May 2000 opinion letter, Dr. W.S. concluded
that the veteran's left knee disability was incurred in
service. However, the Board notes that the only record cited
by the physician in support of his finding was the October
1960 service medical record showing that he was treated for
pain in his left leg. There is no indication that the
physician had access to the veteran's remaining service
medical records or to his post- service medical records.
Although Dr. W.S. did note that the veteran underwent surgery
for a medial meniscus tear in 1973, the physician did not
mention the 1972 softball injury that was discussed in the
report of that hospitalization. The Board therefore believes
that the physician either did not have direct access to this
record, and thus failed to mention this injury as a result,
or that the physician had access to this record but still
failed to offer any opinion as to the impact of the 1972
softball injury on the veteran's claimed left knee
disability. In any event, because no discussion is offered
as to the impact of the veteran's 1972 injury, and no
rationale to support any conclusions in that regard, the
Board believes this opinion to be based on an incomplete
review of the veteran's documented medical history. For this
reason, the Board finds this opinion to be of no probative
value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) [an
opinion based upon an inaccurate factual premise has no
probative value]; see also Elkins v. Brown, 5 Vet. App. 474,
478 (1993); Swann v. Brown, 5 Vet. App. 229, 233 (1993).
However, there are two more supporting medical opinions which
do have probative value. Dr. E.E. and Dr. C.P. opined that
the veteran's current left knee disability, diagnosed as
medial compartment narrowing status post medial meniscectomy,
originated with his inservice knee injury. Both physicians
reviewed the veteran's record to include service medical
records. Dr. C.P. also specifically addressed the softball
injury, but concluded that this was not the etiological
reason for the current left knee disability, rather, the
inservice injury was the reason for current left knee
disability.
Thus, in viewing the probative competent evidence, the Board
has a VA medical opinion, based on a review of the record,
which finds no relationship between current left knee
disability and two private opinions, also based on a review
of the record, which find that there is such a relationship.
In addition, there is supporting lay evidence which dates the
observation of the veteran's left knee problems back to at
least 1961 and from that point onward. This lay evidence
provides continuity of symptomatology from service to
diagnosed post-service left knee disability.
In sum, there is competent evidence establishing treatment
and diagnosis of left knee disability during service. In May
1960, the veteran exhibited marked swelling and fluctuation
of the periarticular soft tissue of the left knee. The
diagnosis was periarticular effusion of the left knee. In
June 1960, some swelling was again observed in his left knee
and the impression was left knee sprain. The veteran was
separated from service in May 1964. The lay evidence
establishes that the veteran was observed to have left knee
problems from 1961, during service, until many years later,
post-service. Although the veteran injured his left knee
playing softball in 1972, competent evidence establishes that
currently diagnosed left knee disability to related to
service and not the post-service injury.
Although there is a VA medical opinion which finds that
currently diagnosed left knee disability is not related to
service, this opinion is outweighed by the two conflicting
medical opinions as they are supported by the record and the
lay evidence.
In determining whether service connection is warranted, VA
must determine whether the evidence supports the veteran's
claim or whether a preponderance of the evidence is against
the claim, in which case the claim is denied. 38 U.S.C.A. §
5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here,
the evidence supports the veteran's claim. Therefore,
service connection for a left knee disability, currently
diagnosed as medial compartment narrowing post medical
meniscectomy with residual chondromalacia, is granted.
ORDER
Service connection for a left knee disability, currently
diagnosed as medial compartment narrowing post medical
meniscectomy with residual chondromalacia, is granted.
____________________________________________
J. Connolly Jevtich
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
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2003
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